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First-tier Tribunal (General Regulatory Chamber)


You are here: BAILII >> Databases >> First-tier Tribunal (General Regulatory Chamber) >> McCartney v Information Commissioner [2025] UKFTT 680 (GRC) (12 June 2025)
URL: http://www.bailii.org/uk/cases/UKFTT/GRC/2025/680.html
Cite as: [2025] UKFTT 680 (GRC)

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Neutral Citation Number: [2025] UKFTT 680 (GRC)
Case Reference: FT/EA/2024/0196

First-tier Tribunal
(General Regulatory Chamber)
Information Rights

Decided without a hearing
Decision Given On: 12 June 2025

B e f o r e :

JUDGE WATTON
MEMBER GRIMLEY-EVANS
MEMBER MURPHY

____________________

Between:
ANDREW PETER MCCARTNEY Appellant
and
THE INFORMATION COMMISSIONER Respondent

____________________


____________________

HTML VERSION OF DECISION
____________________

Crown Copyright ©

    Decision: The appeal is dismissed

    REASONS
  1. This is an appeal against the Information Commissioner's decision IC-271968-Y3X8, made on 8 May 2024. The parties agreed that it can be determined without a hearing and as required by Rule 32 the Tribunal was satisfied it could properly determine the issues without a hearing.
  2. Background

  3. The Appellant requested information under the Freedom of Information Act 2000 ('FOIA') about parking charge notices issued by the Car Parking Partnership ('CPP'). CPP is a trading name of ParkingEye Limited, a subcontractor at a car park on the site of University Hospital Coventry. The hospital is run by University Hospitals Coventry and Warwickshire NHS Trust ('the Trust').
  4. On 24 September 2023 the Appellant made his request to the Trust in the following terms:
  5. I want to know the number of parking charge notices issued by the contractor 'Car Parking Partnership (trading name of Parkingeye Limited (company number 5134454) who manage the car park 'University, Coventry Blue Badge 6 for the period since 1st May 2021 to the 1st September 2023. And how many have been issued and the number that remains due with the total value."

  6. The Trust responded on 20 October 2023. It said that it did not hold the requested information. It stated that it "operates under a Private Finance Initiative ('PFI') contract and all hard and soft services are managed by our PFI Service Providers – which includes the management of car parking. CPP are not the Trust contractors, therefore we do not hold the information requested." It also stated that the contract management company is The Coventry and Rugby Hospital Company PLC ('CRHC PLC').
  7. The Appellant requested an internal review. On 21 November 2023 the Trust responded to that request and informed the Appellant that it maintained its position.
  8. On 21 November 2023 the Appellant made his complaint to the Commissioner. The Commissioner issued its Decision Notice on 8 May 2024. It determined that the information was not held by or on behalf of the Trust, as there were no reporting requirements for car parking penalties specified in the PFI documents. The Trust tried to obtain the information itself and was unable to do so.
  9. Legal framework

  10. This appeal is brought under s.57 FOIA. S.58 FOIA sets out the Tribunal's jurisdiction. The Tribunal shall allow an appeal or substitute the Decision Notice where it considers:
  11. a. that the Decision Notice is not in accordance with the law, or
    b. that the Commissioner ought to have exercised any discretion he had differently.
  12. S.58 also states that the Tribunal may review any finding of fact on which the Decision Notice was based.
  13. The Tribunal must consider for itself whether FOIA has been correctly applied and is not bound by the Commissioner's view or findings. In doing so it must give such weight to the Commissioner's views and findings as it thinks fit: Guardian Newspapers Ltd and Brooke v Information Commissioner and British Broadcasting Corporation (EA/2006/0011 and EA/2006/0013). The Tribunal must also form its own view on how any discretion ought to have been exercised.
  14. S.1 of FOIA entitles any person making a request for information to a public body to be informed in writing of whether the public body holds the information, and to have that information communicated to them. FOIA sets out various exceptions to this general right.
  15. S.3(a) of FOIA states that information is held by a public authority if it is held by the authority, otherwise than on behalf of another person. S.3(b) of FOIA adds that information considered to be held by a public authority if it is held by another person on behalf of the authority.
  16. Whether the public authority holds the information is a question of fact: University of Newcastle upon Tyne v Information Commissioner and BUAV [2011] UKUT 185 (AAC)
  17. As it was held in Chagos Refugees Group v IC and FCO EA/2011/0300 the factual issue may involve consideration of the legal structure under which the third party holds the information on behalf of the public authority and the legal relationship between them.
  18. The relevant standard of proof is the normal civil standard: Preston v The Information Commissioner and C.C. West Yorkshire Police [2022] UKUT 344 (AAC). This means that the Tribunal must determine on the balance of probabilities whether the Trust holds the requested information, or whether it is held on behalf of the Trust.
  19. Evidence and documents

  20. We have read the 513 page open bundle provided to us. There was no closed material in this case. In addition to the parties' written arguments, we considered the following documents in the bundle were of particular relevance to the issues in the appeal:
  21. a. The NHS guidance Public Private Partnerships in the National Health Service: The Private Fiance Initiative. This is a good practice guide and summarises the operation of Private Finance Initiatives in the NHS.
    b. Standardisation of PFI Contracts Version 4 (March 2007). This is guidance published by HM Treasury which sets out a standard approach to PFI contracts.
    c. Car Parking Service Level Specification for the Trust
    d. Letter from ISS to CRHC PLC refusing to provide the information sought, dated 2 May 2024.

    The Appellant's case

  22. The Appellant set out his case in the notice of appeal, as well as two response documents dated 8 July 2024 and 11 October 2024. The Appellant's case is essentially that CPP are performing a function on behalf of the Trust on its freehold land, so the car parking charge information is held for the Trust. He also relies on the obligation of the Trust to pay RCHC PLC a unitary payment.
  23. The Appellant also made the following submissions:
  24. a. CPP is exercising a public function and its actions are therefore amenable to judicial review.
    b. CPP should apply all Government guidance applicable to its activities, including free parking for blue badge holders in specified circumstances.
    c. That the Trust failed to ensure that free car parking was available for inter alia blue badge holders in the circumstances required by NHS guidance.
    d. The Appellant was wrongly issued a parking fine by CPP, in breach of NHS policies.
    e. CPP improperly or unlawfully accessed the Appellant's information on the DVLA KADOE system.
  25. None of the submissions in paragraph 17 are relevant to the legal issues we must determine, nor does this Tribunal have the jurisdiction to determine them. We cannot make findings on them.
  26. The Commissioner's case

  27. The Commissioner relied on his Decision Notice. His argument was that the Trust was clear it did not hold the information requested and that the contractor/subcontractor did not hold it on its behalf. He submitted that in deciding whether information is held on behalf of a public authority, it is relevant to consider if the public authority has access to the requested information.
  28. The Commissioner also argued that it is relevant whether the public authority has any interest in the information.
  29. The Commissioner submitted that the Appellant has not made clear why the specific information is or would be held on the Trust's behalf. The Commissioner submitted that there is no evidence to show that any third party need report this data to the Trust.
  30. Conclusions

  31. The Tribunal unanimously agreed that on the balance of probabilities the Trust did not hold the information sought by the Appellant within the meaning of section 3(a) or 3(b) of FOIA.
  32. The Trust made efforts to obtain the information, which supports our finding that it did not hold it itself. These efforts are set out in the email chain at B494-497 of the bundle and the letter from CRHC PLC dated 2 May 2024 explaining that their own subcontractors had refused to provide the information.
  33. We also find that the information is not held on the Trust's behalf. The Commissioner investigated this in some depth when considering the Appellant's complaint. The Commissioner did not take the Respondent at its word when carrying out his investigation. His officers probed the responses they received. For example, in an email dated 23 April 2024 a Senior Case Officer informed the Trust that it was "not enough to say there is no business need for the information as it may still be held on behalf of a public authority even if it does not need to access it."
  34. We have reviewed the relationship and contractual documents for ourselves, specifically the NHS guidance Public Private Partnerships in the National Health Service: The Private Fiance Initiative; Standardisation of PFI Contracts Version 4 (March 2007) and the particular Car Parking Service Level Specification for the Trust. None of these documents require CHRC PLC or any of its subcontractors to make the car parking charge information available to the Trust.
  35. Broadly, the Trust requires CRHC PLC to ensure there is a staffed, 24 hour car park in operation, with some further specifications as to accessibility for patients, emergencies and disabled people. Based on the evidence we have there are few contractual requirements in place as to how that is achieved and none of them relate to enforcement or penalties. Therefore, there is insufficient evidence to show on the balance of probabilities that information as to parking charges would be held on behalf of the Trust.
  36. The Appellant pointed out that the Car Parking Service Level Specification does require that the contractor comply with NHS guidance, which he says includes the requirement for CRHC PLC to ensure free parking for blue badge users. We agree that information held in relation to the performance of that specific duty could potentially be held on behalf of the Trust. However, the information requested by the Appellant is much broader in scope than that. The Appellant requested all parking charge notices for that particular car park. We do not consider that is sufficiently linked to the contractual obligation CRHC PLC and its subcontractors are performing for the Trust. On the balance of probabilities, we are therefore not satisfied that the information is held on behalf of the Trust.
  37. Decision

  38. The Commissioner's Decision Notice was in accordance with the law. The appeal is dismissed.
  39. Signed Judge Watton

    Date: 18 May 2025

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